92 Decision Citation: BVA 92-10355
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91 44-552 ) DATE
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THE ISSUES
1. Entitlement to an increased disability evaluation for
post traumatic stress disorder, currently evaluated as 50
percent disabling.
2. Entitlement to a temporary total rating based upon
hospitalization from March 24, 1989 to May 2, 1989.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. W. Engle, Associate Counsel
INTRODUCTION
The appellant served on active duty from August 1965 to
April 1969.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a rating decision of July 11, 1988
from the Buffalo, New York, Regional Office (VARO). The
appellant was notified of this decision on July 26, 1988.
The notice of disagreement was received on December 5,
1988. The statement of the case was issued on August 15,
1989. The substantive appeal was received on September 22,
1989. A hearing was held before a hearing officer on
December 14, 1989. The supplemental statement of the case
was issued on February 28, 1990. A second supplemental
statement of the case was issued on June 5, 1991. The case
was received at the Board on October 1, 1991. The appellant
has been represented before the Department of Veterans
Affairs (VA) by Disabled American Veterans and that
organization submitted written argument on March 2, 1992.
REMAND
Our review of the record reveals that records dated prior to
December 21, 1982, including the service medical records are
not within the appellant's claims folder. Furthermore, we
note that the appellant's claim filed in July 1987 included
a claim to a total rating based upon individual
unemployability. This claim was adjudicated by VARO in July
1988 along with the claims of entitlement to a temporary
total rating based on hospitalization from March 24, 1989 to
May 2, 1989 and entitlement to an increased disability
evaluation for post traumatic stress disorder. However,
even though a notice of disagreement received in December
1988 expressed disagreement with the denial of entitlement
to a total rating based upon individual unemployability, the
claim apparently was not given further consideration.
Neither the statement of the case issued in August 1989 nor
the supplemental statements of the case issued in February
1990 and June 1991 discussed this issue. In addition, the
appellant raised a claim for entitlement to service
connection for substance abuse, secondary to post traumatic
stress disorder, at his personal hearing in December 1989,
which was subsequently denied by VARO in February 1990 and
again in May 1991. However, he now argues, through his
representative, that this issue is inextricably intertwined
with his post traumatic stress disorder and therefore should
be considered at the same time the claim for entitlement to
an increased disability evaluation for post traumatic stress
disorder is considered. He also has requested that a VA
psychiatric examination be conducted, to include a social
and industrial survey, to determine the severity of his post
traumatic stress disorder and his ability to obtain and
retain employment.
In view of the above, and the "inextricably linked"
relationship between the claim to a total rating based upon
individual unemployability and the claim for an increased
disability evaluation for post traumatic stress disorder, as
well as the claim to service connection for substance abuse
secondary to post traumatic stress disorder, pursuant to
Harris v. Derwinski, 1 Vet. App. 180 (1991), the Board
believes that consolidation of matters so linked is
preferable to piecemeal litigation in order to preserve
judicial resources. Hayes v. Derwinski, 1 Vet. App. 186
(1991) and Hoyer v. Derwinski, 1 Vet. App. 208 (1991).
Accordingly, further development of the evidence is
necessary in this case. 38 U.S.C.A. § 5107(a) (1991) and
EF v. Derwinski, 1 Vet. App. 324 (1991). Therefore, this
case is REMANDED to VARO for the following:
1. VARO should obtain and associate
all the appellant's records
pre-dating December 1982, including
his service medical records, with
the claims folder.
2. VARO should schedule the
appellant for a special VA
psychiatric examination to determine
the nature and extent of his
service-connected post traumatic
stress disorder. All appropriate
tests should be conducted. The
appellant's claim folder should be
furnished to the examiner prior to
the examination. The examiner
should articulate the appellant's
medical history pursuant to
paragraphs 1.12 and 1.13 of the VA's
Physician's Guide for Disability
Evaluation Examinations, as well as
38 C.F.R. §§ 4.1 and 4.10. The
examiner should indicate the
relationship between the appellant's
substance abuse and his
service-connected post traumatic
stress disorder. A social and
industrial survey should also be
scheduled. The report of the
examination another social and
industrial survey should be
associated with the appellant's
claims folder.
3. VARO should obtain the complete
records from the veteran's periods
of hospitalization from March 24,
1989 through April 13, 1989 and from
April 13, 1989 through May 2, 1989,
including nurses notes and the
results of all tests. The records
should be assicated with the claims
folder.
4. After completion of the
foregoing, VARO should review and
readjudicate the appellant's claim
to a total rating based upon
individual unemployability. The
provisions of 38 C.F.R. § 4.16(a)
should be considered.
The claim to a temporary total rating based upon
hospitalization from March 24, 1989 to May 2, 1989 will be
deferred until completion of the requested development.
After the above development has been completed, VARO should
readjudicate the appellant's claim. If the claim remains
denied, the case should be returned to the Board after
compliance with all requisite appellate procedure. The
purpose of this REMAND is to procure clarifying data. The
Board intimates no opinion as to the ultimate conclusion
warranted, pending completion of the requested development.
No action is necessary on the appellant's part until he
receives further notice.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III
KENNETH R. ANDREWS, JR.
Under 38 U.S.C.A. § 7252 (1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.